Policastro v. Tidewater Paper Mills Co. ( 1925 )

Judgment reversed on the law, and a new trial granted, with costs to appellant to abide the event. The insufficiency in the evidence compelling the reversal of the judgment for plaintiff on the first trial appears to have been remedied on this second trial. There was sufficient evidence offered by plaintiff on this second trial, unanswered and uneontradieted, to warrant the jury in finding that the man who committed the alleged assault was a watchman employed by defendant, and in the absence of any evidence or explanation by defendant, it was for the jury to say whether he was acting within the scope of his employment. Kelly, P. J., Rich, Manning, Young and Kapper, JJ., concur.